Patrick Kilbane, Field Services Representative, IAFF Fifth
District, appeared on behalf of the Union.

Robert Museus, Town Administrator, appeared on behalf of the
Town of Beloit.

ARBITRATION AWARD

The above-captioned parties, hereinafter the Union and Town or Employer,
respectively, are
parties to a collective bargaining agreement which provides for final and binding arbitration
of
grievances. Pursuant to the parties' request, the Wisconsin Employment Relations
Commission
appointed the undersigned to decide the above-captioned grievance. A hearing was held on
November 27, 2006, in Beloit, Wisconsin at which time the parties presented testimony,
exhibits and
other evidence that was relevant to the grievance. The hearing was not transcribed. The
parties filed
briefs by December 28, 2006, whereupon the record was closed. Having considered the
evidence,
the arguments of the parties, the applicable provisions of the agreement and the record as a
whole,
the undersigned issues the following Award.

ISSUE

The parties did not stipulate to the issue to be decided herein. The Union framed the
issue
as follows:

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Did the Employer violate Article XIII "Sickness and Accident
Benefits Full-Time
Employees and Salaried Personnel" or any other article of the collective bargaining
agreement which may apply when it denied Al Cass his maximum allowance of sick
leave for calendar year 2006? If so, what is the appropriate remedy?

The Employer framed the issue as follows:

Did the Employer violate Article XIII when it denied Al Cass
his maximum
allowance of sick leave for calendar year 2006? If so, what is the appropriate
remedy?

I have not adopted either side's wording of the issue. Instead, my wording of the
issue is as
follows:

Did the Employer violate Article XIII of the collective bargaining agreement when
it determined Cass' sick time allotment for 2006? If so, what is the appropriate
remedy?

Section 1 ­ Establishment. BE IT
RESOLVED by the Town Board of the
Town of Beloit Rock County, Wisconsin that the following sickness and accident
plan be established to reduce financial hardship which employee might experience
as a result of physical disability for which they have been granted authorized leave
of absence.

Section 2 ­ Allowance.

Maximum Allowance:

Length of
Service

Full Pay

Half Pay

Less than one month

None

None

One month to one year

7 working days

7 working days

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One year to five years

14 working days

14 working days

Five years thru nine years

21 working days

21 working days

Ten years thru fifteen years

35 working days

35 working days

Sixteen years and over

45 working days

45 working days

. . .

FACTS

The Town operates a fire department in Beloit, Wisconsin. The Association is the
exclusive
collective bargaining representative for the Town's full-time employees. Al Cass is a
lieutenant in
the department and thus is a bargaining unit employee.

This case involves Cass' allotment of sick time for 2006.

Cass began his employment with the Town on January 22, 1997. Thus, his
anniversary date
each year is January 22. His first year anniversary was January 22, 1998. His second year
anniversary was January 22, 1999. His third year anniversary was January 22, 2000. His
fourth year
anniversary was January 22, 2001. His fifth year anniversary was January 22, 2002. His
sixth year
anniversary was January 22, 2003. His seventh year anniversary was January 22, 2004. His
eighth
year anniversary was January 22, 2005. His ninth year anniversary was January 22,
2006.

Cass injured his knee in June, 2006 and had surgery on it the following month. He
was off
work on sick leave for an extended period of time before and after the surgery.

Prior to undergoing his knee surgery, Cass asked the Town's payroll clerk, Lynn
Caple, how
much sick time he had available to use. Caple responded that Cass had 21 full pay days and
21 half
pay days of sick leave available. Cass disagreed with Caple's answer because he thought,
based on
his reading of the sick leave schedule, that he was entitled to 35 full pay days and 35 half
pay days
of sick leave. Cass subsequently sent a letter to Fire Chief Dennis Ahrens requesting
clarification
of his available sick time. In that letter, Cass indicated that he thought he was entitled to 35
full pay
days and 35 half pay days of sick leave. Ahrens subsequently responded, in writing, that
since Cass'
hire date was January 22, 1997, he was (still) in the "five years thru nine years" category, so
he was
(only) entitled to 21 full pay days and 21 half pay days of sick leave. Ahrens further
indicated that
the Town payroll clerk had advised him that "this is the policy the Town had followed for
sick time
benefits."

The Union disagreed with the Chief's interpretation of the sick leave schedule and
filed the
instant grievance. In the grievance, the Union contended that Cass was entitled to 35 full
pay days
and 35 half pay days of sick leave for calendar year 2006. When Town Administrator
Robert
Museus responded to the grievance, he indicated that Cass was (still) in the "five years thru
nine
years" category, so he was (only) entitled to 21 full pay days and 21 half pay days of sick
leave. He
further opined that "this interpretation is consistent with the past practice of the Town."

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. . .

The contract language involved in this matter (i.e. the sick leave language) has been
in
existence in its current form for at least the last 18 years.

. . .

Lynn Caple, the Town's payroll clerk, testified that employees have not been
advanced to the
"ten years thru fifteen years" category on the sick leave schedule until they complete nine
full years
of service and reach their ten year anniversary date; employees who have not reached their
ten year
anniversary date remain in the "five years thru nine years" category. No demonstrable proof
was
offered to substantiate her testimony.

DISCUSSION

At issue is whether the Employer violated Article XIII when it determined Cass'
allotment
of sick time for 2006. The Union contends that it did while the Employer disputes that
assertion.
Based on the following rationale, I answer that question in the negative, meaning that the
Employer
did not violate Article XIII by its actions herein.

My discussion begins with the following preliminary comments. This is a contract
interpretation case involving sick leave language which will be addressed below. In some
contract
interpretation cases, the arbitrator looks at evidence external to the collective bargaining
agreement
to help interpret the applicable contract language. I am referring, of course, to the parties'
past
practice and/or bargaining history. In this case, when the Employer responded to the
grievance, it
averred that there was both a policy and a practice that supports its interpretation of the
contract
language. At the hearing though, the Employer did not offer demonstrable proof of either an
applicable policy or a past practice. Consequently, the outcome of this case is not going to
be based
on a policy or an alleged past practice. Additionally, no evidence was offered about the
parties'
bargaining history on the language involved, except that the language has been in existence in
its
current form for a long time. That being so, the outcome of this case is not going to be
based on
bargaining history either. It follows from the foregoing that all I've got to work with, so to
speak,
is the language itself. Accordingly, the outcome in this case is going to be based exclusively
on the
applicable contract language.

Having so found, the focus now turns to the applicable contract language which is
found in
Article XIII. That article identifies the sickness and accident benefits which are available to
bargaining unit employees. While that article contains numerous sections, the only section
which is
relevant to this case is Section 2. That section contains a schedule which identifies the
amount of
sick leave which is available to employees based on their length of service. It provides thus:

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Maximum Allowance:

Length of
Service

Full Pay

Half Pay

Less than one month

None

None

One month to one year

7 working days

7 working days

One year to five years

14 working days

14 working days

Five years thru nine years

21 working days

21 working days

Ten years thru fifteen years

35 working days

35 working days

Sixteen years and over

45 working days

45 working days

The question to be answered here is whether Cass was in the "five years thru nine
years" category
or the "ten years thru fifteen years" category in the summer of 2006 (i.e. when the grievance
was
filed). The Town contends Cass was in the former category while the Union contends he
was in
the latter category. Both sides argue that the plain meaning of the language supports their
position.

Before I address those two categories though, I'm first going to address the two
categories which
precede them so that the language can be compared and contrasted. In the discussion which
follows, I'm going to refer to five categories on the schedule which I'm calling the first
category,
the second category, the third category, the fourth category and the fifth category. For the
purpose of my discussion, I've bypassed the first category which is listed on the sick leave
schedule (i.e. the "less than one month" category), because an employee in that category
does not
qualify for sick leave and Cass, of course, does. Consequently, when I refer to the first
category,
I'm not referring to the "less than one month" category, but instead am referring to the
second
category listed on the schedule (i.e. the "one month to one year" category). Thus, my
numbering
system starts with the second category on the sick leave schedule and proceeds upward from
there.

The focus now turns to what I'm calling the first and second categories (i.e. "one
month to one
year" and "one year to five years"). I begin my discussion about them with the observation
that
both categories contain the phrase "one year". It's found at the end of the first category and
the
beginning of the second category. Since the phrase "one year" is repeated in that fashion,
"one
year" is obviously a specific cutoff date. Given its context and usage, it means that an
employee
is in the first category (i.e. "one month to one year") until they reach their first anniversary
date.
When an employee reaches their first anniversary date, they move into the second category
(i.e.
the "one year to five years" category). This interpretation also applies to categories two and
three. Here's why. Both categories contain the phrase "five years". It's found at the end of
the
second category and the beginning of the third category. Since the phrase "five years" is
repeated
in that fashion, "five years" is obviously a specific cutoff date (just like "one year" was a
cutoff
date). Given its context and usage, it means that an employee is in the second category (i.e.
"one
year to five years") until they reach their fifth anniversary date. When an employee reaches
their
fifth anniversary date, they move into the third category (i.e. the "five years through nine
years"
category).

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Starting with category three though, the sick leave schedule's format changes. Here's
what
I'm referring to. First, the word "to" is replaced with the word "thru". The word "to" is
used in
categories one and two, while the word "thru" is used in categories three and four. Second,
the year
at the end of the category is not repeated at the beginning of the next category (like it was in
categories one and two). Starting with category four, the number at the beginning of the
category
is not identical to the number at the end of the preceding category. Instead, it increases by
one (i.e.
going from nine years to ten years and fifteen years to sixteen years). Those changes, and
their
significance, will be reviewed next.

The word "thru" does not have the same meaning as the word "to". The following
shows this.
In my discussion about categories one and two, which contains the word "to", I noted that an
employee remains in their existing category until they reach the applicable anniversary date.
Thus,
in that context, the word "to" essentially means until. Once an employee reaches the
endpoint of
categories one and two, they move into the next category. Specifically, an employee with
one year
and a day of service is not in category one anymore (i.e. the "one month to one year"
category), but
instead moves into category two (i.e. the "one year to five years" category). Similarly, an
employee
with five years and a day of service is not in category two anymore (i.e. the "one year to
five years"
category), but instead moves into category three (i.e. the "five years thru nine years"
category).
Starting with the third category though, the schedule no longer uses the word "to", but
instead uses
the word "thru". This change in word changes the meaning. Here's why. When the word
"thru" is
considered in its context, it means that an employee has to complete their ninth and/or
fifteenth year
of service before they move to the next category. Until that occurs, they remain in their
existing
category even after they pass their ninth and/or fifteenth year anniversary dates. In other
words, an
employee does not move to the next category upon reaching their ninth and/or fifteenth year
anniversary date. Instead, they remain in their existing category after they pass their ninth
and/or
fifteenth year anniversary date. Once they complete their ninth and/or fifteenth year of
service, then
they move to the next category (i.e. either the fourth category or the fifth category). For
emphasis
though, I repeat: an employee has to complete (i.e. finish) their entire ninth and/or fifteenth
year
before they move to the next category.

The Union argues that once Cass passed his nine year anniversary date on January
22,
2006,
he began his tenth year of employment and thus was eligible to move to the next category on
the sick
leave schedule (i.e. the fourth category of "ten years thru fifteen years"). Said another way,
it's the
Union's view that once an employee passes their nine year anniversary date, they move to
the next
category. There are two problems with this interpretation. First, it ignores the fact that the
schedule
uses the word "thru" in the third category. The Union essentially replaces the word "thru"
with the
word "to" so that an employee gets to move to the next category once they pass their nine
year
anniversary date. However, the language does not say that; it says "thru nine years". Cass
started
his ninth year with the Town on January 22, 2006. Application of the word "thru" (in the
phrase
"thru nine years") to these facts mean that Cass' ninth year ran from his January 22, 2006
anniversary
date through January 21, 2007. In the summer of 2006, when Cass sought to be moved to
the next
category on the sick leave schedule, he had about nine and a half years of service.

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MA-13475

However, he had not completed (i.e. finished) his ninth year of service. That was not
scheduled to
occur until January 22, 2007 when he reached his ten year anniversary date and qualified for
the next
level of sick leave benefits. That fact is dispositive of the outcome herein. Second, aside
from that,
the category that Cass sought to move to (i.e. the fourth category) does not start with the
phrase "nine
years"; it starts with the phrase "ten years". As previously noted, Cass had not yet reached
his ten
year anniversary date in the summer of 2006, so he did not qualify to be moved into the
fourth
category as he sought. To repeat, once that event happens, and he reaches his ten year
anniversary
date, then he moves into the fourth category (i.e. the "ten years through fifteen years"
category).
Until then, he remains in category three.

Given the above, I find that Cass was still in the "five years thru nine years"
category
when
the grievance was filed. Accordingly, the Employer did not violate Article XIII when it
determined
Cass' sick time allotment for 2006.

In light of the above, it is my

AWARD

That the Employer did not violate Article XIII of the collective bargaining agreement
when
it determined Cass' sick time allotment for 2006. Therefore, the grievance is denied.